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What Does The Second Amendment Mean?

By KAREN LEE TORRE

In a few months, another and more far-reaching pronouncement on Americans’ Second Amendment rights is expected from the U.S. Supreme Court.

Its 2008 opinion in District of Columbia v. Heller, which struck down the District’s ban on handgun possession as an unconstitutional encroachment on the individual right to keep and bear arms, was significant but of narrow application as Heller only involved limitations on federal authority.

It remains to be decided whether the Second Amendment guarantee applies equally to the states.

As was expected, in the wake of Heller, the issue was teed up for the Court. The sequel, unsurprisingly, comes out of Chicago, a city run by liberal Democrats and where citizens are denied the right even to keep a handgun in the home for self-protection. The lead petitioner, Otis McDonald, is a 76-year old man who lives in a crime-ridden neighborhood and is threatened constantly by drug dealers and thugs who, of course, do not obey gun laws.

The Fourteenth Amendment’s due process clause, long construed to offer substantive as well as procedural protections, has been the traditional vehicle through which most of the rights guaranteed by the first eight amendments were applied to the states. The selective incorporation doctrine looks to whether a right is “fundamental to the American scheme of justice,” or “necessary to an Anglo-American regime of ordered liberty.”

This sounds like a no-brainer. The right to keep and bear arms is right in the text of the Second Amendment, and at the time of its adoption, well-settled English law recognized one’s fundamental right to keep a gun to defend himself, his family and his house. It is a natural right, I say.

Notably, McDonald’s brief, while making the winnable due process argument, devotes more ink to a bold effort to convince the Court to use the Privileges and Immunities Clause to apply the right to the states. That would require the overruling of old, and arguably faulty, precedents. It will be interesting to see if that garners the support of five justices.

To conservatives and libertarians, questions posed at oral argument by the Court’s liberal wing sound like fingernails on a chalkboard. So it was with Justice Stephen Breyer, a dissenter in Heller, who asked McDonald’s counsel whether Chicago could maintain the challenged law if it could show that the gun ban saved many lives. Arrgghh.

Can you imagine Justice Breyer entertaining an argument that a state could ban abortions because it would save a few million lives a year?

For Justice Breyer and his co-liberals, abortion (or the more sanitized “reproductive freedom”) is a fundamental federal constitutional right, even though there is no mention of it in the darn document. The Court just invented it under the rubric of a right to “privacy,” another guarantee imported into the document from outer space. Nonetheless, the Court’s left wing will brook no state incursions into abortion rights.

On the issue of arms possession, there is actual constitutional text which speaks to that right, and from the liberals we get hemming and hawing and irrelevant policy-speak.

As with Heller, the petitioners’ brief in McDonald v. Chicago is a fascinating read for history geeks. You travel back in time to the nation’s newspapers of the 1800s, the Federalist papers, the legislative debates over both the introduction in the Senate of the Fourteenth Amendment and the Civil Rights Act of 1866, the Privileges and Immunities Clause in “Antebellum Usage,” and even what Reconstruction-era military commanders and churches had to say.

What I had not realized until I read McDonald’s brief was the extent to which the Fourteenth Amendment’s framers were heavily influenced by abolitionist thought, and that much of the debate over gun rights during Reconstruction stemmed from Southern states’ efforts to disarm free blacks.

I’m just surprised that it took this long to resolve the question of what the Second Amendment means.

In 2010, Otis McDonald, an African-American citizen, has presented that question at last. He seeks to vindicate what he believes to be his natural and fundamental right to defend himself and his home against criminals.

Liberals seek to deny him that right. How ironic. •

Karen Lee Torre, a New Haven trial lawyer, litigates civil rights issues in the federal courts. Her e-mail address is thimbleislands@sbcglobal.net.