The Supreme Court has granted certiorari for McDonald v. City of Chicago, SC Docket: 08-1521.
With the Chicago gun ban case the 14th Amendment moves to center stage. The lead attorney in the Supreme Court case of McDonald v. Chicago is Alan Gura. He did an excellent job in District of Columbia v. Heller, so the new case is in very good hands.
The question presented in McDonald v. Chicago is:
“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.”
That the Justices framed their questions to inquire about incorporation through the Privileges or Immunities Clause, this is really interesting. Do they have plans, maybe.
Incorporation is the technical word for making a Constitutional Amendment applicable to the states, by incorporating the amendment in the States Constitutions. When the Bill of Rights was passed, the Founders specifically rejected a proposal to incorporate the Amendments. Instead, the laws were only applicable to the federal government.
But starting in 1897, the high court has undergone a piecemeal process of incorporating various parts of the Bill of Rights. Today’s gun right’s cases are asking the justices to extend the federally protected Second Amendment right to keep and bear arms to the States
The 14th Amendment language closely tracked the existing Article IV original language in the Privileges and Immunities Clause. In Congressional discussions of the Joint Committee of Fifteen, on February 28, 1966, Congressman Bingham expressed his opinion that this draft language would give Congress power to “secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States,” and he added that, “The proposition pending before the House is simply a proposition to arm the Congress…with the power to enforce the bill of rights as it stands in the constitution today. It hath that extent—no more … If the State laws do not interfere, those immunities follow under the Constitution.”
Read the rest of this entry »