Another 2nd Amendment Victory - The Right To "Bear" Arms Outside The Home

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.

U.S. Constitution, 2nd Amendment

In Heller, the Supreme Court held that individuals had a right under federal law to "keep" modern handguns in their home for protection. In McDonald, the Supreme Court extended held that this right extended to the states. But what about the right to "bear" arms outside the home for self protection?

The test case for that was Illinois, the only state with a blanket ban on concealed carry. In December, Judge Posner, in a case on appeal to the 7th Circuit, wrote that the right to "bear arms" means the right to bear them outside the home. He ordered Illinois to craft a constitutionally acceptable concealed carry law within 180 days.

Illinois asked the entire 7th Circuit to revisit the decision - and today, the 7th Circuit, sitting en banc, denied that request. The Second Amendment Foundation is celebrating. The next stop will likely be the Supreme Court, but unless there is a change to the makeup of the Supreme Court between now and when their decision is issued, if they follow the reasoning of Heller, the Posner decision should be upheld.

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The Supremes - Guns & The War On Christianity

The Supreme Court released several important opinions yesterday - among them, McDonald v. City of Chicago, extending the Second Amendment right to keep and bear arms to the states, and Hastings Christian Fellowship v. Martinez, continuing the left's war on Christianity.

In the prior landmark Second Amendment case, Heller, the Supreme Court held 5-4 that the Second Amendment provided an individual right to keep and bear arms, at least on land subject to direct federal control. Left unanswered was the question whether the Second Amendment also applied to the fifty states. That question was answered the other day in McDonald - yes.

The decision did not identify the precise contours of the Second Amendment right, such as, for example, whether concealed carry is part of the right, or to what extent the full faith and credit clause requires jurisdiction to honor gun permits issued in another state, etc. Nor did the decision adress directly to what degree the right can be regulated by government. For example, immediately after the McDonald decision was announced, Chicago's Mayor Daley announced his intention to place onerous restrictions on gun ownership within Chicago - a city where "homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq."

The McDonald decision, authored by Justice Alito, was notable for several reasons beyond just the holding of the case. One, the decision was again 5 to 4, with Justice Stevens writing the dissent in which he argued for applying tests that would allow the activist wing to make of the Second Amendment a nullity. Justice Scalia responded to Justice Stevens in a separate concurrence. The arguments by Stevens and Scalia frame the battle ongoing between originalists and liberal activists. The McDonald decision was one largely based on the original intent of the drafters of the Second and Fourteenth Amendments. The Stevens dissent proposes alternative theories to undermine the Second Amendment that, as Scalia points out, are wholly subjective and, in reality, are nothing more than legal cover for the personal opinions of the activist judges.

Two, the McDonald opinion was notable for the concurring opinion of Justice Thomas. He would find the Second Amendment applicable to the states on the basis of the 14th Amendment's "privileges and immunities" clause - something of great interest to academics and likely as boring as a rock to everyone else. Were the Court were to revive the "privileges and immunities" clause of the 14th Amendment, something rendered a nullity since shortly after the Civil War, it would open a potential Pandora's box of litigation as the Court struggled to outline the contours of the clause. All that said, from a layman's point of view, most interesting about Thomas's concurrence is his painstaking recounting of the origins of state and local firearms restrictions. The regulations arose largely out of an effort by Democrats to control blacks in the post civil war period. One need only to look to Chicago's Mayor Daley - or most other liberal state and local leaders - to see that, at least in terms of ultimate goals of controlling the unwashed masses, nothing has changed.

While the McDonald decision represents a good decision reached on the basis of judicial interpretation rather than activism, the polar opposite is presented in Hastings Christian Fellowship v. Martinez. In that case, the activist wing of the Court held that a college may refuse to certify a Christian student group that limited admission to individuals willing to certify both to their belief in God and to their adherence to a sexually moral life - i.e., sex only within the confines of a marriage between a man and a woman. As Justice Alito points out in his dissent, the activist wing began by twisting the facts of the case and ignoring the issues that relate to freedom of association and freedom of religion. Indeed, the facts of this case were truly appalling:

As Hastings stated in its answer, the Nondiscrimination Policy “permitted political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” App. 93. But the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination. “By the very terms of the [Nondiscrimination Policy],the University . . . select[ed] for disfavored treatment those student [groups] with religious . . . viewpoints.”

And yet still, the liberal wing of the Court, through smoke, mirrors and very selective recitation of facts, was able to find this direct attack on Christianity to be constitutional. It is not a major decision, but just one more in a line of such decisions dating back to half a century ago when the activist Court began to strip religion from the public sector.

And on that note, let us hope and pray that none of the originalist members of the Court are forced from the bench between now and 2012. If so, we will soon become gunless as well as Godless.

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Slavery, The KKK, Jim Crow, The 14th Amendment, Guns & Chicago

The Supreme Court is set to hear oral argument today in McDonald v. City of Chicago. At issue is whether the Second Amendment, whose broad contours were decided in Heller, applies to States. Chicago has gun laws equally as restrictive as those struck down in Washington D.C. by Heller. But there is so much more here. This is anything but a normal case.

There has not been a case so intertwined with the issues of slavery and racism since the Civil War. Here is the big, big, big rub. Ultimately, for opponents of the Second Amendment, in order for the Court to find that the Second Amendment does not apply to states, the Court would have to uphold a series of racially charged, post civil war decisions that gave free reign to the rise of the Ku Klux Klan and which forgave the slaughter of hundreds of blacks one Easter's day in post-Civil War Louisiana. Those cases were an attempt to limit the rights of blacks in post Civil War America and they are a stain on our nation's history that should not be left standing.

Here is the background to McDonald. The starting point is with perhaps the most reviled Supreme Court decision of all time, the 1857 case of Dred Scott. In that case, Chief Justice Taney, a Democrat, held that no black, whether a freedman or a slave, could ever be considered a citizen of the U.S. entitled to rights under the Constitution.

Dred Scott was one of the many fuses that led in 1861 to the Civil War. In the immediate aftermath of the war, the abolitionist Republican Congress, in answer to Dred Scott, amended the Constitution. They passed the 13th Amendment, abolishing slavery. They passed the 14th amendment, of concern in the instant case for the Privileges & Immunities clause as well as the Due Process clause. Specifically, it states:

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; . . .

They also passed the 15th Amendment, preventing States from interfering with the right of anyone to vote based on such person color.

At issue for originalists in McDonald is what the drafters intended when they wrote the 14th Amendment. You can read the Petitioner's brief in McDonald for some very good historical research on that topic. It is pretty clear that the drafters intended the "privileges or immunities" clause to extend the rights set forth in the Bill of Rights to individual citizens in each state as an answer to Dred Scott. The due process clause - of such importance today - was then considered purely procedural.

But in the Slaughterhouse Cases of 1873, a 5-4 majority in the Supreme Court gutted the "privileges and immunities" portion of the 14th Amendment, holding that it only applied as a brake on federal power, while states were free to establish their own laws in contravention. On the heels of this decision, in 1875, came the decision in Cruikshank - a decision that led directly to the growth of the KKK and the era of Jim Crow.

The background to Cruikshank is that, on Easter Day, 13 Apr 1873, hundreds of black Republicans were meeting in the Colfax, Louisiana courthouse to protect it from a Democratic takeover during a political dispute. Hundreds of whites surrounded the Courthouse and attacked, burning it down and killing somewhere between 100 and 280 blacks. Several members of the white mob were arrested and charged under The Enforcement Act, a federal law that made it a crime to conspire to deprive anyone of their Constitutional rights.

The Cruikshank Court held, on the basis of the Slaughterhouse Cases, that the federal government could not hold individuals liable for violating another citizens civil rights. Among other things, the Court held that individuals could only look to the States for the enforcement of their 1st and 2nd Amendment rights:

The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. . . .

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States. . . .

The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, . . . the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States. . . .

The end result of the Slaughterhouse-Cruikshank line of cases from a legal standpoint was to nullify and atrophy the privileges and immunities clause of the 14th Amendment. Later Courts would get around that by developing the legal canard of "substantive due process" to bootstrap federal enforcement of civil rights. As a practical matter, as already pointed out, Cruikshank gave rise to the growth of the KKK and the imposition of Jim Crow laws.

The original intent of the drafters of the 14th Amendment, by the Privileges or Immunities clause, was to apply the Bill of Rights to all citizens of our country. It may be that the court in MacDonald does not reach this issue, but rather finds the Second Amendment is "incorporated" under the Due Process clause. But those on the Court who do not want to see the Second Amendment applied as a universal right of all citizens are going to have to reach Cruikshank - and uphold it. The irony here is just delicious.

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