The Right to Bear Arms: Does the Second Amendment Apply in Chicago?

by Damon Root

Last year’s landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment secures an individual right—not a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?

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Through a series of legal decisions handed down over the past century, the Supreme Court has gradually held that most of the protections in the Bill of Rights apply to the states via the Fourteenth Amendment, which declares, “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.” The Second Amendment, however, has been glaringly absent from this process, leaving state and local governments free to systematically violate gun rights.

Until now.

Later this term, the Supreme Court will hear oral arguments in McDonald v. Chicago, a case that centers on whether the Windy City’s notorious handgun ban violates the 14th Amendment. As we’ll see, it most certainly does. The text of the Fourteenth Amendment, the historical events leading to its adoption, the goals of its framers, and the statements of purpose made both by its supporters and by those who ratified it, all point in the exact same direction: The amendment was designed to secure individual rights–including the right of armed self-defense–against abusive state and local governments.

In the wake of the Civil War, the former Confederate states began passing a series of laws, ordinances, and regulations that robbed the recently freed slaves and their white allies of their political, economic, and civil rights, including the right to arms. Mississippi’s 1866 Black Code, for example, declared “that no freedman, free Negro, or mulatto…shall keep or carry firearms of any kind.” In other words, America’s original gun control laws were designed to disarm African Americans and leave them at the mercy of predatory state governments.

So the Radical Republicans of the 39th Congress responded with the Fourteenth Amendment, which was ratified in 1868, and which was explicitly designed to secure the life, liberty, and property of all Americans from tyrannical state attack. One of the leading figures in this process was Rep. John Bingham of Ohio, the author of the 14th Amendment’s first section (quoted above). In a speech before the House of Representatives, Bingham explained that “the privileges and immunities” protected by the amendment “are chiefly defined in the first eight amendments to the Constitution.” That quite obviously includes the Second Amendment.

Similarly, Sen. Jacob Howard of Michigan, who presented the Fourteenth Amendment to the Senate, declared that its purpose was “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees,” including “the right to keep and to bear arms.” As the legal scholar Michael Kent Curtis writes in his masterful history No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, both Bingham and Howard “clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them.”

For its part, Chicago currently maintains that the Second Amendment should have zero authority over its gun control regime, arguing that the city should enjoy “the greatest flexibility to create and enforce firearms policy” and that “Firearms regulation is a quintessential issue on which state and local governments can ‘serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”’ But of course the Supreme Court would never allow Chicago to try a novel “experiment” like banning free speech, so why should the Second Amendment enjoy any less respect than the First Amendment does?

Indeed, as the libertarian Institute for Justice argues in the superb friend of the court brief it filed in the Chicago case, “To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition. Southern states did all of those things both before and after the Civil War, and the point of the Fourteenth Amendment was to make them stop.”

By striking down Chicago’s draconian handgun ban, the Supreme Court has the chance to finally restore both the Second Amendment and the Fourteenth Amendment to their rightful place in our constitutional system. Let’s hope the justices get it right.


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Posted Dec 10th 2009 at 12:47 pm in History, Justice/Legal, News, Politics, State Politics | 86 Comments