The Capitol Hill Report

The Supreme Court agreed to hear a challenge to the City of Chicago’s ban on handguns, a case that will test the reach of the Second Amendment.

In last year’s historic Heller decision, the Supreme Court ruled that: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.” 

That ruling shattered years of anti-gun revisionist history and misinformation that claimed the Second Amendment protected a “collective” right of the states to maintain something like the National Guard.

Heller, though, was limited in scope only to Washington, D.C., a federal enclave.  The Court did not address the issue of whether states or localities can prohibit the right to keep and bear arms, or if the Second Amendment was “incorporated” to the states through the Fourteenth Amendment.

The Court will consider this question in the case of McDonald v. City of Chicago, a suit filed immediately after the Heller decision.  A lower court and the Seventh Circuit Court of Appeals both ruled in favor of the city, setting the stage for Supreme Court consideration.

The spotlight is sure to focus brightly on new Supreme Court Justice Sonia Sotomayor.  In a case before the Second Circuit Court of Appeals in January, 2009, Judge Sotomayor ruled that the Second Amendment did not apply to the states. 

When questioned during her confirmation hearings, Sotomayor argued that she was only following Supreme Court precedent, to which she was bound.  Well, now that she is on the Supreme Court, her hands are no longer tied. 

Will she now rule that the Second Amendment should not, unlike many other rights in the Bill of Rights, be incorporated to the states through the Privileges or Immunities Clause or the Due Process Clause of the Fourteenth Amendment?

Also during her confirmation hearings in the Senate Judiciary Committee, Judge Sotomayor was asked a straightforward question by Sen. Tom Coburn of Oklahoma.

“Do you believe,” the Senator asked, “that I personally have a right to self-defense?”

This did not seem to be a particularly difficult question.  Sen. Coburn didn’t even ask about defending himself with a firearm.  He only asked if Americans have a basic right to self-protection.  Her answer?  “That’s sort of an abstract question.”

In fact, it’s hard to imagine a less abstract question.  The right to keep and bear arms is afforded special protection in the Constitution precisely because it is a fundamental right. 

It is a right that predates the Constitution because the Founders wrote the Bill of Rights not to create new rights, but to protect old ones -- our “unalienable” rights -- among them life, liberty and the pursuit of happiness.

John Dickison, a delegate to the Constitutional Convention from Pennsylvania, explained an unalienable right this way: it is something “Which God gave to you and which no inferior power has a right to take away.” 

And so, if our right to life is a natural right, then the right to self-protection necessarily follows from it.  And self-protection, be it protection from individual criminals or a criminal government, was, to the Founders, synonymous with the right to bear arms.

Interestingly, the Fourteenth Amendment was enacted in great part specifically to protect the gun rights of freed slaves.  After the Civil War, many states passed laws to disarm blacks who were former slaves, such as Mississippi’s post-war law: No freedman “shall keep or carry fire-arms of any kind, or any ammunition.”

Proponents of the Fourteenth Amendment argued that the amendment was necessary, in part, to stop the disarming of the freedmen -- lest they be little better off than before emancipation. 

One hundred years later, in the 1960s, the Deacons for Defense armed themselves and often successfully defended themselves in areas where civil rights were still not adequately protected and blacks were targets of violence. 

If the right to keep and bear arms is found not to be a “fundamental” right, people in places like Chicago and New York City will find themselves on a 21st century plantation, treated more like subjects than citizens.