Besides Alito’s plurality decision in McDonald v. Chicago there are concurring opinions by Thomas and Scalia as well as dissents by Stevens and Breyer. It was a 5-4 decision with Alito, Thomas, Scalia, Kennedy, and Roberts in the majority. The most interesting of the decisions is Thomas’. He agreed with the plurality that the Second Amendment applies to the states. But instead of basing his decision on the Due Process Clause of the Fourteenth Amendment, he based his decision on the Privileges or Immunities Clause.

During the Twentieth Century the courts incorporated most of the rights guaranteed by the Bill of Rights. They found that the Fourteenth Amendment required state governments to respect the rights found in most of the first eight amendments to the
Constitution. They did this by saying that the Due Process Clause incorporated the rights.

The problem with this interpretation is that the language of the Due Process Clause only applies to procedural rights and not to substantive rights. It states: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.] Thus it would apply to the procedural guarantee of the right to a jury but not to the substantive right guaranteeing the right to assembly or to bear arms. Scholars have long recognized this fiction.

The easy answer to the problem is that the Privileges or Immunities Clause governs the incorporation of the substantive rights. It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]” The language “privileges or immunities” is taken from Article IV, §2, cl. 1 of the Constitution which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” At the time the Constitution was written the term “privileges” was synonymous with the term “rights.” Thus on the face of it the Privileges or Immunities Clause guarantees that the states will not violate the rights that citizens of the United States are entitled to under the Federal Constitution.

But the problem with this is a long history of interpretation going back to the Nineteenth Century prior to any decisions involving incorporation. The Supreme Court in the 1873 Slaughter House Cases ruled that the Privileges or Immunities Clause only applied to those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws” and three years later in United States v. Cruikshank it ruled that the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because ‘the right . . . existed long before the adoption of the Constitution.’” Likewise it ruled that “the right to keep and bear arms was not a privilege of United States citizenship because it was not ‘in any manner dependent upon that instrument for its existence.’”

One of the cardinal rules of interpretation is that no section of a document is meaningless. There must be a reason for every section. Yet if you accept the Slaughter House Cases and Cruikshank, the Privileges or Immunities Clause is meaningless. It adds absolutely nothing to the document. So the question is why is the plurality opinion based upon the Due Process Clause where it obviously does not fit and not on the Privileges or Immunities Clause where it is a much better fit. The answer is “tradition” or to put it in legalese “stare decisis.” “Stare decisis,” according to my old edition of Black’s Law Dictionary means “to abide by, or adhere to decided cases” or, alternatively, the “[d]octrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same.” Alito’s plurality opinion says

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Thus no one is saying that Thomas is wrong. But the other justices are merely saying we have accepted this fiction for years and we see no reason to change it. But as Thomas says, “stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. . . . It is not an inexorable command.”

The Supreme Court, in what is probably its most important decision of the year, decided that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment’s right to possess a gun. The ruling prevents the states from passing laws prohibiting people from owning guns, although it leaves the door open for limited exceptions such as preventing convicted felon from owning guns.

The plurality opinion, written by Justice Alito, relying upon the Court’s Heller decision of two years ago, finds that the right of self defense is a fundamental right and that in order to maintain the right citizens must be allowed to have guns in their homes. In the process the Court found statutes in Chicago and Oak Park, Illinois which limited the right to possess guns to be unconstitutional.

In applying the Second Amendment to the states the Court reversed case law that has existed since the Nineteenth Century. The Bill of Rights originally applied only to the Federal Government. But after the Civil War the Fourteenth Amendment was adopted. Section One states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Several years after the Fourteenth Amendment was adopted the Supreme Court decided Cruikshank. In Cruikshank The Supreme Court exonerated a group of white men accused of killing a group of African Americans who dared to march through their hometown on the Fourth of July. Among the charges were depriving their victims of various constitutional rights, including the right to bear arms. The Supreme Court held that the Constitution does not guarantee the right to bear arms and therefore Cruikshank and his fellow murderers could not be convicted of depriving the African Americans of the right to bear arms.

The McDonald Court found a long history of self defense. It traces the common law right to the 1689 English Bill of Rights. In 1765 Blackstone call self defense “one of the fundamental rights of Englishmen,” At the Constitutional Convention both Federalists and Anti Federalists recognized the importance of self defense. By 1820 thirteen states recognized the right to bear arms in the state constitutions.

After the Civil War, southerners attempted to disarm African Americans, many of whom served in the Federal army. Congress fought back. The Freedmen’s Bureau Act of 1866, recognized

“the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”

During the debate on the Fourteenth Amendment Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” One of these,was the right to keep and bear arms: “Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”

The test for incorporation is whether a right is is fundamental to our scheme of ordered liberty and system of justice. The Supreme Court found that based upon the history of the country and the history of the Fourteenth Amendment the right of self defense is fundamental to our scheme of ordered liberty and system of justice. As such Second Amendment right are incorporated into the Due Process Clause and are enforceable against the states.

Joseph Carey plead guilty to conducting an illegal gambling business in 2003. As a convicted felon he is ineligible to possess a gun. In Heller the Supreme Court specifically excluded convicted felon from those who could possess weapons.

Carey now wants to have a gun. Therefore he moved in the United States District Court to expunge his record. The motion was denied, without a hearing, on the basis that the court did not have jurisdiction.

Carey appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit held that “[a]n order on a motion to expunge a conviction is within the equitable jurisdiction” of the District Court. Therefore the proper action for the Sixth Circuit to take is to return the case to the District Court for it to consider whether or not, using its equitable jurisdiction it should grant the motion to expunge. But instead the Sixth Circuit affirmed the District Court decision saying that the District Court properly used its discretion in denying Carey a hearing and in denying his motion. The problem is that the District Court never used its discretion in denying the motion since it wrongly decided that it did not have jurisdiction.

The Eleventh Circuit Court of Appeals in United States v, Rozier upheld laws charging possession of a weapon by a convicted felon against Second Amendment claims.

Eenie Austin, the mother of Christopher Rozier’s child arrived at his house in time to see his current girl friend holding a butcher knife to Rozier’s neck. Austin joined the fray and threw a concrete statute, hitting him in the face. At this point he pulled out a gun to protect himself. The decision does not say who called the police but they arrived later in the day with a search warrant. They searched the residence and found crack cocaine, marijuana, and ammunition. A gun was found buried in the yard.

Rozier was charged with possession of a gun and ammunition by a convicted felon in violation of 18 United States Code Section 922(g)(1) and since he had three major prior drug convictions he was sentenced under the Armed Career Criminal Act to 210 months in prison.

In District of Columbia v. Heller the Supreme Court held that “the Second Amendment conferred an individual right to keep and bear arms.” But Heller also said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . .” Based on this language the Eleventh Circuit found that certain classifications of people, include convicted felons may be denied Second Amendment rights.

The First Circuit Court of Appeals found the Federal ban on juveniles possessing firearms to be constitutional despite claims that it violates the Second Amendment under Heller and that it is unconstitutional under the Commerce Clause.

The Court found that the prohibition in 18 U.S.C. Section 922(x)(2)(A) which limits possession of handguns by juveniles, with the exception of their use for hunting, self defense, and national guard duty, not to violate the Second Amendment. It points out that the Federal government has prohibited juveniles from possessing handguns since 1994 and that some states limited the sale of guns to juveniles as early as the latter part of the Nineteenth Century. Furthermore the founding generation limited the possession of guns by certain groups, in particular convicted criminals and the insane. From these examples the Court draws the conclusion that the founders would have approved of Section 922(x)(2)(A) and that therefore it does not violate the Second Amendment.

The Court also found that Congress did not violate the Commerce Clause when it passed the Youth Handgun Safety Act. Citing United States v. Lopez, 514 U.S. 549 (1995) the Court found that the Commerce Clause provided Congress with three types of power.

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Furthermore in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997) the First Circuit upheld the Youth Handgun Safety Act on the grounds that sales of firearms to juveniles affected interstate commerce and the power to ban the possession of firearms by juveniles is a correlated power. The First Circuit found that nothing in Heller affected Cardoza which remains good law.

Thus the court found that the limited ban on possession of firearms by juveniles in Section 922(x)(2)(A) to be constitutional.

The Supreme Court yesterday, as expected, granted certiorari to McDonald v. Chicago. In the 2007-2008 session of the Supreme Court, it decided District of Columbia v. Heller. In Heller the Supreme Court decided that the Second Amendment to the Constitution granted individuals a limited right to possess guns. Prior to Heller the general view was that the Second Amendment only grant a collective right to members of militias to possess guns.

Heller involved Federal law since it involved the District of Columbia. Therefore the Supreme Court did not decide whether the Second Amendment limited the ability of the states and local governments to control gun ownership. The Bill of Rights originally only protected citizens from the actions of the United States government. Over time the Supreme Court has gradually decided that the Fourteenth Amendment incorporated the various rights guaranteed by the Bill of Rights into the national law guaranteeing such rights against state and local limitations. However the Second Amendment has not been incorporated by the Supreme Court. This question will be decided in McDonald The Seventh Circuit took the traditional view following Nineteenth Century precedent in ruling that Heller is limited to Federal laws. On appeal the Supreme Court will rule whether it applies to state and local governments.

The traditional way to incorporate rights guaranteed by the bill of Rights is through the Due Process Clause of the Fourteenth Amendment, While Allen Gura, the attorney who argued Hellerr before the Supreme Court and who will argue McDonald will argue that the Supreme Court should use the Due Process Clause to incorporate the Second Amendment, alternatively he will argue that the Court should use the Privileges and Immunities Clause of the Fourteenth Amendment. Many modern scholars believe that the Privileges and Immunities Clause is the appropriate way to incorporate the rights guaranteed by the Bill of Rights. This will give us an opportunity to see whether the Supreme Court will adopt this theory.