A new SCOTUS term and a new gun issue.
October 6th, 2009 . by Tim Wisdom
The 1st Monday in October marks the beginning of a new term for the Supreme Court of the United States, commonly called SCOTUS. The October 2009 term includes at least one lawsuit regarding the 2nd Amendment with a second one, brought by the NRA, waiting to be granted a writ of certiorari. Both cases deal with the same issue, but each uses different reasoning. The one that has already been granted certiorari was filed by Alan Gura, who successfully argued Heller v. DC last year, and Chicago-area attorney David G. Sigale.
08-1521 MCDONALD V. CHICAGO
LOWER COURT CASE NUMBER: 08-4241, 08-4243, 08-4244
QUESTIONS PRESENTED:
Whether the Second Amendment right to keep and bear arms is incorporated as
against the States by the Fourteenth Amendment’s Privileges or Immunities or Due
Process Clauses.
Rather than rehashing the details of the case I’ll direct you here to read all the pertinent information. What I want to discuss here is my view of the question presented by the case. There are two views on the subject and I believe both sides have valid points. I won’t disparage those that hold the other view, we can simply agree to disagree.
The disagreement deals with States rights, and whether SCOTUS can require that the individual States follow the 2nd Amendment because of the 14th. Don’t confuse this with an actual 10th Amendment case, it’s really a 2nd Amendment case whose decision could end up impacting States rights, and that’s a concern for many. Don’t get me wrong, I am a firm believer in the 10th Amendment and States rights, however I don’t think it applies here. Allow me to explain my reasoning.
In past cases, SCOTUS has ruled that certain parts of the Bill of Rights incorporate to the States through the 14th Amendment. The 1st and 5th Amendments are two of the better known ones. The Supreme Court has ruled that the States must allow free speech and cannot allow self-incrimination. The 2nd Amendment, however, is a bird of a different feather. Both the 1st and 5th Amendments concern rights granted by the Constitution. The 2nd Amendment concerns a right granted by our Creator and acknowledged by the Constitution. That’s a huge difference and it needs to be clearly understood.
The right to keep and bear arms stems from the concept of defense of ones self, family and property. In a land void of any laws, most believe they still would have the right to defend themselves, because the right doesn’t rise out of laws or governments. The right to keep and bear arms is no more than a method of that defense. Since the Constitution of the United States doesn’t grant the right, it can only recognize its existence. That is the purpose of the 2nd Amendment.
When an entity applies for Statehood, they must create a State Constitution which is republican, and doesn’t violate the Federal Constitution. This requires individual State and local governments not infringe on inalienable rights acknowledged by the Federal Constitution, and is the real crux of what the Supreme Court needs to address.
In addition to the main question of incorporation in MCDONALD V. CHICAGO, the Supreme Court should, but probably won’t, define the word ‘infringe’. Doing so would strike down any and all laws that violate that definition and provide clarity to the Lower Courts. This would end the need for SCOTUS to hear further 2nd Amendment lawsuits.
