Wednesday, September 30, 2009

History in the Making

The big news in the legal world today is that the Supremes have granted cert in a case called McDonald v. City of Chicago. The issue? Whether the Second Amendment right to bear arms applies against the states (and their political subdivisions):
Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

The reference to the Privileges or Immunities Clause is fascinating.

Dave Kopel at Volokh recommends a number of articles for background reading here.

Based on the explosion of scholarly articles we got in advance of Heller, I am hopeful that we will be beneficiaries of a like outpouring between now and next June, when McDonald will likely be decided. This time, the articles will focus on Reconstruction and the Reconstruction Congress. John A. Bingham may become the most famous man in America!

Kurt Lash, hurry up with the second part of your article on the Privileges or Immunities Clause!


  1. I love this. Along with Heller and Citizens United v. Federal Elections Commission (and a host of decisions over the last several years), the Court seems hell-bent on returning the union to Locke's state of nature.

  2. CW,

    As you probably suspect, I respectfully disagree. The comments section of a blog post is probably not the best place to explain why in detail, but I would at least like to outline some of the points I would make:

    1. I firmly believe that “original understanding” methodology provides the proper approach for analyzing constitutional questions such as these. Otherwise, the Constitution simply means whatever five people say it means.

    2. On the merits, and using original understanding methodology, I think it's pretty clear that Heller was correctly decided. Having read a number of articles about contemporary understandings of the right to bear arms in the late colonial and early national periods, I'd say an substantial to overwhelming preponderance of the historical evidence supports the conclusions (a) that the right to bear arms was generally understood as an individual right associated with self-defense and hunting as well as militia service, and (b) that the Second Amendment as drafted was intended and understood to encompass the right to bear arms, broadly defined.

    3. Looking forward to McDonald, from what I've seen it is painfully clear that the Reconstruction Congress was particularly upset that blacks and Republicans in the south were being disarmed and then subjected to violence and threats of violence without being able to defend themselves; that it passed both the Freedman's Bureau Act (which specifically referred to “the constitutional right to bear arms”) and the Civil Rights Bill of 1866 to remedy this problem (among others); and that it fashioned the Fourteenth Amendment to insure (among other things) that the two acts were not subject to constitutional attack. I'm willing to be persuaded otherwise, but I believe the burden is on the proponents of non-incorporation to explain why the Fourteenth Amendment did not incorporate the Second when there is so much evidence that that was its intended (and publicly expressed) purpose.


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