In a major victory for Second Amendment rights, the Supreme Court today moved to “incorporate” Second Amendment protections to the states, limiting their ability to restrict gun rights.
In 2008’s Heller decision, the Court held that a ban on handgun ownership in the District of Columbia violated the Second Amendment, but remained agnostic about whether similar statutes in the states could pass constitutional muster. Writing for the 5-4 majority in McDonald v. City of Chicago, Associate Justice Samuel Alito said today “The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States.”
In so ruling, the majority overturned several lower federal court rulings that were bound to previous precedent.
The method of “incorporating” the protections of the Constitution to the states is liable to draw grief from some strict constructionists — and cries of hypocrisy from some liberals. In a concurring opinion, Associate Justice Clarence Thomas held with the majority that the 14th Amendment extends the right to bear arms to the states, but not via the Due Process clause route favored by Alito.
“[The] Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts,” Thomas argued. “Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States.””
Thomas joined Alito, Chief Justice Roberts, and Associate Justices Scalia and Kennedy in the decision. Associate Justices Stevens and Breyer each filed dissenting opinions.