High Court’s Gun Ruling Cites Intent of 14th Amendment

June 28, 2010 - 12:46 PM
In 1868, Republican Representative Thaddeus Stevens, who was directly involved in ratifying the Fourteenth Amendment to the U.S. Constitution, was not ambiguous about whether the right to keep and bear arms applied to the states.

A Sig Sauer 9mm pistol, a gun popular with drug cartels, is displayed at an ATF news conference in Houston.(AP photo)

(CNSNews.com) – In 1868, Republican Representative Thaddeus Stevens, who was directly involved in ratifying the Fourteenth Amendment to the U.S. Constitution, was not ambiguous about whether the right to keep and bear arms applied to the states.
 
“Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty,” Stevens said. “The Fourteenth Amendment, now so happily adopted, settles the whole question.”
 
In today’s ruling, Associate Justice Samuel Alito cited the Fourteenth Amendment, legal precedent, the framers, and the intent of Congress in writing the majority opinion that extends the individual right to keep and bear arms to the states.
 
The Fourteenth Amendment says, “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; nor deny to any person within its jurisdiction the equal protection of the laws.”
 
In Monday’s 5-4 ruling, the court determined that the Second Amendment applies to states in the case of McDonald v. Chicago.
 
This follows the high court’s 2008 decision in District of Columbia v. Heller, which said the Second Amendment’s right to keep and bear arms extends to individuals in federal enclaves, specifically the District of Columbia, which is not a state. Today’s ruling by the Supreme Court applies to the states.
 
Alito wrote: “Evidence from the period immediately following the ratification [in 1868] of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. … In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”
 
In his dissent, Associate Justice John Paul Stevens argued that today’s decision violated a state’s decision to be flexible in incorporating certain rights.

The U.S. Supreme Court, Washington, D.C.

“I do not mean to deny that there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to the state and federal governments,” wrote Stevens.  “Jot-for-jot incorporation of a provision may entail greater protection of the right at issue and therefore greater freedom for those who hold it; jot-for-jot incorporation may also yield greater clarity about the contours of the legal rule.”
 
Alito was joined by Chief Justice John G. Roberts, as well as Justices Clarence Thomas, Anthony Kennedy and Antonin Scalia. Retiring Justice Stevens – in his final day on the high court -- was joined in his dissent by Justices Ruth Bader Ginsburg, Stephen Breyer,  and Sonia Sotomayor.
 
Justice Stevens continued, “The costs of federal courts’ imposing a uniform national standard may be especially high when the relevant regulatory interests vary significantly across localities, and when the ruling implicates the states’ core police powers.”
 
“When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed standard,” said Stevens.
 
“This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedure and into the relatively vast domain of substantive rights,” he continued. “So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States. Indeed, it is far from clear that proponents of an individual right to keep and bear arms ought to celebrate today’s decision.”
 
Alito wrote that it was not uncommon for constitutional rights to intervene with state laws.
 
“Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights,” Alito wrote.
 
In framing the argument that the intent of the Fourteenth Amendment should incorporate Second Amendment rights, Alito referenced post-Civil War laws that the Fourteenth Amendment intended to eliminate.
 
“The laws of some states formally prohibited African Americans from possessing firearms,” Alito said. “For example, a Mississippi law provided that ‘no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry firearms of any kind, or any ammunition, dirk or bowie knife."
Sam Alito, Sonia Sotomayor

Supreme Court Justice Samuel Alito and Sonia Sotomayor attend the president’s State of the Union address on Wednesday, Jan. 27, 2010. (AP Photo/Pablo Martinez Monsivais)

Alito argued that, ultimately, the Heller decision regarding the D.C. gun ban makes it clear that the right to keep and bear arms also applies to states.
 
“With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process,” Alito wrote. “In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty.”
 
“Our decision in Heller points unmistakably to the answer,” Alito continued. “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right.”