Tuesday, March 02, 2010

Second amendment case now moves to the states and tests the incorporation doctrine (Chicago law case)


The New York Times has a mixed but important editorial today (March 2) , “The Second Amendment’s Reach”, based on the case McDonald v. Chicago. This case challenges a Chicago ordinance that makes it very hard to own a handgun legally within the city, even for defending one’s own home, property or family against burglars. The link is here.

The Supreme Court had ruled 5-4 against a slightly less restrictive DC law, but based on the fact that the District of Columbia is a federal enclave (a notion getting less acceptable all the time to DC residents, as there have been blog postings here about DC home rule and statehood). The new issue is the way to apply the “incorporation doctrine” of the 14th Amendment, which sometimes applies the restrictions on federal government (including enclaves) to state governments when applied to “Bill of Rights” provisions. As the Times says, the overall practice as been called “selective incorporation” (a good item for US government high school teachers to ask about on tests).

As the Times writes, an 1873 Supreme Court decision has blocked the use of the “privileges or immunities clause” to extend the incorporation doctrine, but this case could cause the 1873 case to be reviewed. However, the Court could rewrite the guidance on the reach of the incorporation doctrine and then send the Chicago case back to lower courts for a trial on the merits.

The Times feels that there is still a difficult question to resolve: whether the right of an individual to protect his or her own home overrides community concerns about the availability of guns. But libertarians have correctly pointed out that gun laws tend to result in only the bad guys being armed. I wish the Times had taken that into account. I remember all these points well from a Libertarian Party convention in Richmond back in 1995.

Picture: from the DC case.

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