The Supreme Court agreed Wednesday to hear a case filed against a citywide ban on handguns in Chicago. Analysts say the case, McDonald v. City of Chicago, has relevance well beyond the right to bear arms, however, arguing that it will review a longstanding legal posture that has seen all kinds of individual rights infringed by local and states laws.
Chicago laws presently infringe on the right to bear arms there. Colorado state laws infringe less on that right. So, does the Constitution protect the right to bear arms across local borders or doesn’t it? Does the Bill of Rights stand against the states? Any finding in favor of expanded individual rights in the case might necessarily extend, for example, to the right to abortion, to sexual privacy, to gay marriage– that is, to a wide variety of rights conservative justices on the court and “originalist” Constitutional scholars have long opposed.
From the Washington Independent:
The issue in the Chicago case, as defined in the petition to the court, is “[w]hether 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 court’s decision to take the case and consider whether the Second Amendment might be “incorporated” – applicable to the states – by the “privileges or immunities clause” of the Fourteenth Amendment suggests that the court is open to reconsidering a long line of cases dating back to 1873 that read that clause narrowly and thereby restricted the ability of the ability of the Fourteenth Amendment to protect fundamental rights. Although the Supreme Court has acknowledged many rights under the Fourteenth Amendment since then, it has done so based on the more tenuous argument that they’re protected by the more limited “due process” clause, which says that the State shall not “deprive any person of life, liberty, or property, without due process of law”. Lawyers and judges have at times resorted to complicated legal gymnastics to make the argument that a newly-recognized right falls under “substantive due process.”
That argument has left those rights vulnerable to an increasingly aggressive attack by conservatives who claim judges are engaging in “judicial activism” by recognizing rights not specifically enumerated in the Constitution. The “privileges and immunities clause”, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” has the potential to be read much more broadly.
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